Longstanding Practice Allegedly Violates Detainees’ Charter Rights
The Ontario Superior Court of Justice has certified a class-action lawsuit against the federal government over the use of provincial jails for immigration detainees. The lawsuit represents 8,360 migrants who were detained in provincial or territorial jails by the Canada Border Services Agency (CBSA) between 2016 and 2023.
In the decision issued on Friday, the court rejected all 15 objections raised by the federal government’s lawyers, allowing the class-action to proceed. Justice Benjamin Glustein noted that immigration detainees experienced conditions similar to criminal inmates, including co-mingling with violent offenders, use of restraints such as shackles and handcuffs, strip searches, and severe restrictions on contact and movement.
“Immigration detainees were incarcerated in provincial prisons and encountered the same conditions as criminal inmates,” Justice Glustein wrote.
The class-action lawsuit asserts that the CBSA’s practice of detaining immigration detainees in provincial prisons through arrangements with provinces and territories violates the Charter rights of the detainees. Foreign nationals and permanent residents detained by CBSA under the Immigration and Refugee Protection Act are not accused of a crime, and according to Canadian and international law, immigration detention is administrative in nature and cannot be punitive.
The federal government has not yet indicated if it will appeal the court’s decision.